Environmental Criminal Enforcement Update

This first case is an appropriate follow-up to my August 30, 2017 blog post, which discussed EPA’s Lead Renovation, Repair and Painting Rule. On September 7, 2017, Maureen S. Walck, of Lockport, NY, pleaded guilty to failure to provide a lead paint hazard warning notice. The charge carries a maximum sentence of one year in prison and a fine of $100,000.

The defendant, a real estate broker with RealtyUSA, executed a contract on January 15, 2014, with the owner of a residence in Lockport, NY. The residence was built in approximately 1900, and the owner was aware that lead-based paint hazards were present. The owner informed Walck of the hazards and showed a copy of the lead-based paint inspection reports to the defendant.

On January 25, 2014, a prospective buyer made an offer to purchase the residence. As part of the sales contract, a lead-based paint rider and disclosure form was included. After an inspection of the residence, and after reviewing the lead-based paint records, the prospective buyer cancelled the sales contract.

On February 6, 2014, a second prospective buyer made an offer to purchase the residence. Again as part of the sales contract, another lead-based paint rider was included. However, unlike the rider with the first prospective buyers, Walck indicated that the seller had no knowledge of lead-based paint and/or lead-based paint hazards at the residence and that there were no records pertaining to lead-based paint and/or lead-based paint hazards for the residence. The second prospective buyers purchased the residence and closed on the residence on April 11, 2014.

In September 2015, the new owners learned that their child was diagnosed with lead poisoning.

The investigation was conducted by EPA’s Criminal Investigation Division, and the U.S. Department of Veterans Affairs Office of Inspector General, Criminal Investigations Division. Sentencing is scheduled for December 11, 2017.

St. Lawrence County Man Pleads Guilty to Clean Water Act Crimes

On September 7, 2017, Acting United States Attorney Jaquith announced Michael J. Ward, age 54, of Gouverneur, New York, pled guilty, in Binghamton federal court, to three felony counts of violating the Clean Water Act.

In pleading guilty, Ward admitted that between January 2013 and September 2015, while employed as the Technical Director in charge of environmental compliance at the APC Paper Group paper mill in Norfolk, New York, he caused the paper mill to violate its Clean Water Act permit by discharging wastewater containing excessive levels of biochemical oxygen demand (“BOD”) into the Raquette River. BOD is the amount of dissolved oxygen necessary for microorganisms in the water to break down organic material. BOD levels also provide an index for measuring the effect discharged wastewater will have on the body of fresh water receiving it. In this case, the paper mill’s Clean Water Act permit restricted the amount of BOD that could be discharged through wastewater. Ward admitted in court today that he was responsible for monitoring, calculating, and reporting the paper mill’s compliance with its Clean Water Act permit. He further admitted that he hid and falsified data regarding the BOD levels in the mill’s wastewater discharges, thus allowing the mill to violate its Clean Water Act permit on a regular basis. Additionally, he repeatedly falsified monthly reports to the DEC to hide the continuing Clean Water Act violations. The defendant’s illegal conduct was discovered after he was fired by APC Paper Group for unrelated reasons in the fall of 2015.

The charges carry a maximum sentence of up to 3 years in prison, a fine of up to $800,000, and a term of supervised release of up to 1 year. Ward will be sentenced in federal court in Binghamton on January 26, 2018 by Senior United States District Judge Thomas J. McAvoy.

This case was investigated by EPA’s Criminal Investigation Division, and the New York State DEC, Division of Law Enforcement and Bureau of Environmental Crimes Investigation Unit (BECI). The case is being prosecuted by DOJ’s Assistant U.S. Attorney.

Cleveland, Ohio Man Sentenced to Nearly Three Years in Prison for Illegal Demolition of Former Factory

On September 21, 2017, William S. Jackson, age 47, was sentenced to 33 months in prison and ordered to pay $7.8 million in restitution. Jackson was sentenced for violating the Clean Air Act by failing to remove asbestos prior to demolishing a former factory in Cleveland, law enforcement officials said.

Christopher Gattarello leased the former National Acme facility at 170 East 131st Street in Cleveland in June 2011. The 570,000 square-foot facility was built in 1917 and was used for manufacturing for nearly a century. It is located near many homes and a school. In July 2011, a company estimated removing asbestos from the facility would cost $1.5 million.

Defendant Jackson operated a Cleveland building demolition company. In July 2012, he submitted a notice of demolition with the Cleveland Division of Air Quality stating there was no asbestos in the National Acme facility. About 10 days later, the CDAQ rejected Jackson’s notice because it was incomplete and stated demolition “may not begin” until a proper notice was submitted and approved. About 10 days after that, on July 21, 2012, Jackson began demolition at the owner’s direction.

Asbestos fibers were released into the environment during demolition. Debris accumulated outside the facility from demolition and asbestos in the piles were exposed to the wind and elements.

The owner was sentenced to nearly five years in prison for his crimes earlier this year.

“The defendants in this case put unsuspecting workers at great risk and threatened the health and safety of the community when they failed to follow proper procedures for removing asbestos,” said Scot Adair, Acting Special Agent in Charge of EPA’s criminal enforcement program in Ohio. “This case demonstrates that EPA and its law enforcement partners will prosecute those who willingly break environmental laws in an attempt to cut costs.”

The case was investigated by EPA’s Criminal Investigation Division, the State of Ohio Environmental Protection Agency, the Ohio Bureau of Criminal Investigation and the Internal Revenue Service. The case is being prosecuted by DOJ’s Assistant U.S. Attorneys.

On October 23, 2017, NYSDEC ECO Jerry Kinney completed an investigation into the illegal disposal of a commercial business located at 2799 State Route 20 in the town of Sheridan. The automotive garage had been in poor condition for several years and the owner of the building decided to borrow a friend’s excavator and dig a large hole in an attempt to demolish and bury the building. Nearly half the demolished building was placed in the hole prior to ECO Kinney receiving an anonymous complaint. After speaking with the property owner, ECO Kinney determined that asbestos abatement was not completed as required for all commercial demolitions. The waste needed to be legally disposed of at a regulated facility and not buried on site. The owner was cited for illegal disposal of solid waste, returnable to the Town of Sheridan Court.

Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Syracuse, New York. Should you be confronted with any type of environmental compliance, permitting or enforcement issues, including the threat of a potential environmental criminal prosecution, please feel free to contact Attorney Murphy or Attorney Timothy Lambrecht of the Wladis Law Firm. Mr. Murphy previously served as a senior trial attorney with the U. S. Department of Justice Environmental Crimes Section and regularly represents clients in defending against alleged criminal violations of federal, state and local environmental laws.

Kevin C. Murphy concentrates his practice in the areas of environmental compliance and litigation; environmental and white-collar criminal defense, and complex litigation matters. Mr. Murphy is a graduate of the University of Virginia School of Law and a former senior trial attorney with both the Kings County (NY) District Attorney’s office and the U.S. Department of Justice Environmental Crimes Section in Washington, D.C. He previously taught a seminar on environmental criminal enforcement at the Syracuse University School of Law and has been listed in The Best Lawyers in America.